CAAF will hear oral argument in a second case on Tuesday, January 24: United States v. Bradley, No. 11-0399/NA. This will be the second time CAAF considers Seaman Bradley’s 2004 guilty pleas before a general court-martial for assault with a means likely to cause grievous bodily harm and reckless endangerment by discharging a firearm, in violation of Articles 128 and 134, UCMJ (appellant participated in a drive-by shooting targeting another Sailor), for which he was sentenced to confinement for 48 months and a dishonorable discharge.

The appellant entered into a pretrial agreement that included an agreement to testify in the trials of his co-actors under a grant of immunity. Appellant met with prosecutors and testified, however he eventually withdrew from his PTA. The appellant was subsequently prosecuted by a trial counsel who had knowledge of his immunized statements. He moved both to dismiss and to disqualify the trial counsel; both motions were denied by the trial military judge. He then entered guilty pleas pursuant to a new pre-trial agreement.

On automatic review, the N-MCCA set-aside the findings and sentence, ruling that the trial military judge gave an ambiguous advisement with regard to the unconditional nature of the appellant’s guilty pleas, finding the pleas to be de facto conditional, and deciding that the military judge abused his discretion by not disqualifying trial counsel who had knowledge of appellant’s immunized statements, creating a Kastigar violation.

The JAG certified two issues to CAAF, which heard oral argument in 2009 (Bradley I), asking if the CCA erred in (1) finding the trial military judge abused his discretion by not disqualifying the trial counsel, and (2) setting-aside the findings and sentence without first finding material prejudice. However, CAAF did not consider the specified issues. Instead, in an opinion from which (now) Chief Judge Baker dissented, CAAF found the appellant’s guilty plea to be unconditional, waiving the issues, set-aside the CCA’s decision, and returned the case for the CCA to complete its review under Article 66.

On remand (Bradley II), the N-MCCA affirmed the findings and sentence, finding that CAAF’s opinion prohibited it from finding the appellant’s pleas improvident based on the waiver issue, and deciding that the appellant’s civilian defense counsel’s advice was not so deficient as to amount to ineffective assistance of counsel.

In November, 2011, CAAF granted review of three issues:

I. In Bradley I, this court ruled that its application of waiver to appellant’s disqualification-of-trial-counsel claim did not render his pleas improvident where there was: (1) no ineffective assistance of counsel (IAC) claim; and (2) only a possibility that he believed the disqualification claim was preserved for appeal.  On remand, appellant claimed IAC and presented evidence that he did believe his disqualification issue was preserved.  Did NMCCA err in holding that it was bound by this court’s ruling that appellant’s pleas were provident?

II. Appellant’s civilian counsel erroneously advised him that his denied motion to disqualify trial counsel from further participation in the case was preserved for appeal despite unconditional pleas.  Did NMCCA err in finding that civilian counsel’s erroneous advice was reasonable, and therefore not deficient?

III. On remand, did NMCCA violate the law of the case doctrine by finding that even if the trial judge erred by not disqualifying trial counsel – which the Bradley I court found he had – appellant was not prejudiced – which the Bradley I court found he was?

The appellant’s brief cites new evidence introduced by the appellant on remand before the N-MCCA – that the appellant’s pleas were improvident based on his mistaken belief that the disqualification issue was preserved for appeal, and that his civilian counsel was ineffective – to support an argument that CAAF, in Bradley I, did not reach the pivotal issues in this case, and then invited CAAF to decide them now rather than remand for a third review by the CCA.

Citing CAAF’s opinion in Bradley I, the appellant’s brief argues that the appellant’s pleas are improvident because he misunderstood a material term (waiver of the disqualification issue), and that the court must either revive that motion, or set-aside the findings.

Then, arguing that the civilian defense counsel’s performance amounted to IAC, the brief states that the record is clear that there was no consent to a conditional plea, and further shows that the civilian defense counsel believed the disqualification issue was preserved, despite unconditional pleas. The brief notes the relative ease with which this issue could have been researched and discovered by the civilian trial defense counsel.

Finally, tackling the third issue, the brief argues that the N-MCCA violated the law of the case doctrine by not relying on its own findings in Bradley I. “In short, the NMCCA Panel in Bradley II was required to follow the prejudice finding by its Bradley I brethren. By failing to do so, it violated the law of the case doctrine.” Appellant’s Br. at 19.

The government’s brief first argues that CAAF’s opinion in Bradley I finally resolves the issue of the providence of the appellant’s pleas, and that the N-MCCA is bound by this ruling (in a competing law of the case argument). The government notes that the only significant new evidence brought on remand was an affidavit by the appellant, making a “bald claim” that preservation of review was central to his pleas.

Addressing the issue of IAC, the government’s brief states that the civilian defense counsel’s belief that the disqualification issue was preserved by the appellant’s pleas was reasonable. The government styles the civilian defense counsel as a “zealous advocate who reasonably misjudges the law.” Appellee’s Br. at *22 (pages unnumbered). However, the brief also argues that there is no prejudice, as the appellant would not rationally have insisted on going to trial due to the overwhelming evidence against him and a favorable pretrial agreement.

The government’s brief then makes short work of the appellant’s argument on the third issue, noting that CAAF set-aside the CCA’s ruling in its entirety, making it irrelevant to further proceedings.

CAAF’s review will be de novo, and will include both the underlying questions of law and the question of the scope of its remand in Bradley I. I anticipate the oral argument will revolve around how broadly CAAF must review the NMCCA’s opinion in Bradley II.

Case Links:
Bradley I: N-MCCA opinion
Bradley I: CAAF oral argument audio
Bradley I: CAAF opinion
Bradley I: Blog post: CAAF issues two more opinions
Bradley II: N-MCCA opinion
Bradley II: Appellant’s brief
Bradley II: Appellee’s (government) brief
Bradley II: Blog Post: Argument preview

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